Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) (No 3) [2017] FCA 871

Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) (No 3) [2017] FCA 871

The additional affidavits were directly relevant to issues in the proceeding, including pleaded counterfactual scenarios. Although some affidavits were served late and explanations for delay were limited, the Sanofi parties did not demonstrate relevant prejudice that would justify refusing leave. Any further evidence or document access required could be addressed, including through existing rights under the settlement deed or subpoenas. It was therefore in the interests of justice to grant the Commonwealth leave to file the affidavits, with costs reserved.

Jurisdiction
Australia
Judgment Date
02 August 2017
Procedural Posture
Application for Leave to File Additional Affidavits in a Patents Proceeding / Interlocutory Application Before Final Hearing
Outcome
Application granted; costs reserved.
Legal Topics
['leave to File Additional Affidavits' 'late Service of Evidence' 'prejudice' 'undertakings as to Damages' 'settlement Deed' 'legal Professional Privilege']
['intellectual Property' 'patents and Associated Statutes' 'civil Procedure'] ['leave to File Additional Affidavits' 'late Service of Evidence' 'prejudice' 'undertakings as to Damages' 'settlement Deed' 'legal Professional Privilege']

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Procedural Posture

Application for Leave to File Additional Affidavits in a Patents Proceeding / Interlocutory Application Before Final Hearing

Legal Issues

  1. 1 ['Whether the Commonwealth should be given leave to file additional affidavits of five witnesses for its case in chief despite late service.' 'Whether the late service of the additional affidavits would cause relevant prejudice to the Sanofi parties.' 'Whether issues concerning the settlement deed, legal professional privilege, discovery or access to Apotex documents justified refusing leave.']

Ratio Decidendi

The additional affidavits were directly relevant to issues in the proceeding, including pleaded counterfactual scenarios. Although some affidavits were served late and explanations for delay were limited, the Sanofi parties did not demonstrate relevant prejudice that would justify refusing leave. Any further evidence or document access required could be addressed, including through existing rights under the settlement deed or subpoenas. It was therefore in the interests of justice to grant the Commonwealth leave to file the affidavits, with costs reserved.

Court Disposition

Application granted; costs reserved.

Orders

  • ['The Commonwealth is given leave to file the affidavit of Felicity McNeill sworn 20 June 2017.' 'The Commonwealth is given leave to file the affidavit of Ian Crettenden sworn 20 June 2017.' 'The Commonwealth is given leave to file the affidavit of Roger Millichamp sworn 20 June 2017.' 'The Commonwealth is given...